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Harsh Justice

Criminal Punishment and the Widening Divide Between America and Europe

by James Q. Whitman

Oxford University Press, 311 pp., $35

WHETHER THEY SMOKE marijuana or commit murder, American criminals almost always receive stiffer punishments than their European counterparts. In "Harsh Justice," Yale University professor James Q. Whitman tries to explain Americans' relative enthusiasm for punishment by studying the intellectual and political histories of the United States, France, and Germany.

Over time, Whitman believes, status-conscious France and Germany began to treat nearly all criminals in the dignified manner once reserved for members of the nobility and political prisoners. America, disdainful of such status distinctions since the Revolution, came to treat everyone in the low-status manner befitting peasants and common criminals. The United States, he argues, moved to one-size-fits-all vengeance while Europe moved towards individualized, nurturing justice. American justice thus "tends not to treat offenders with respect"--which puts the nation at peril through its indifference to suffering.

The key figure in Whitman's analysis is Cesare Beccaria, the Milanese Enlightenment thinker who believed in uniform punishments without regard to the offenders' status or circumstances. This philosophy gained only modest traction in Europe, but Americans--skeptical of state power and prone to populist revulsion against arbitrary pardons--took it to heart. And the system that resulted was merciless and cruel.

Is this right? The history in "Harsh Justice" sheds only a dim light on the realities of punishment in the United States and Europe. Whitman fails, for instance, to explain why the American passion for egalitarianism, present in the society since at least 1776, failed to manifest itself in criminal justice for over two hundred years. Except to note that Americans and Europeans gave up on ideas about rehabilitation "very suddenly, around 1975," he gives no hint that rising crime led to public enthusiasm for harsher punishment. Indeed, a comparative study of crime rates sheds significant light on attitudes toward punishment. In the 1970s, American crime rates--which had climbed steadily since the end of World War II--were the highest in the industrialized world. Imprisonment rates, by contrast, were about the same as those in other rich countries. Sick of crime--over 60 percent of households fell victim to property crimes in 1973--Americans began to demand harsher punishments. The nation built new prisons and instituted stiff sentencing guidelines. By the late 1990s, America's overall crime rates were lower than those in any other large developed country. (Although homicide remains stubbornly high.) Europeans didn't build prisons and, perhaps because of the attitudes Whitman discusses, saw crime rates soar: Today, London, Paris, and Berlin all have more crime per capita than New York City.

Whitman has visited German prisons and read German guard-training manuals, but he doesn't appear to have done the same in the United States--and so he makes much out of European training-manual provisions and legal precedents requiring respectful treatment of prisoners, but he seems unaware that similar provisions also exist in the United States. French prisons, as Whitman concedes, are in some ways worse than their American counterparts. While he makes much of policies allowing French prisoners to wear their own clothes and have other petty comforts, he really doesn't make a convincing case that Europeans as a whole are much nicer to prisoners than Americans overall. They simply let them out of prison more quickly and suffer higher crime rates as a result. More disturbingly, Whitman's book has a strangely anti-democratic subtext. Whitman has many kind words for unelected European bureaucrats who run prison systems and, in one absurd passage, compares America's long prison sentences to Nazi torch-light rallies because both "lend themselves naturally to mobilizing mass support."

Americans and Europeans do, indeed, feel differently about crime, and Whitman is right that intellectual history has something to do with this divergence. But explaining it requires a careful look at the political and social realities that shape the administration of criminal justice, and that's what "Harsh Justice" never provides.